Duwah v The Queen - [2011] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0532

GUMA GOLO GIDION DUWAH
	Applicant
v
THE QUEEN
	Respondent

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JUDGES:	MAXWELL P, TATE JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2011
DATE OF ORDERS:	27 July 2011
DATE OF JUDGMENT:	5 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 262
JUDGMENT APPEALED FROM	R v Guma Golo Gidion Duwah (Unreported, County Court of Victoria, Judge Murphy, 11 February 2009)

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CRIMINAL LAW – Appeal – Conviction – Rape – Absence of consent – Awareness of absence of consent – Prosecution case on absence of consent put on alternative and inconsistent bases – Complainant either asleep and unable to consent, or consented because of mistaken identity – Misuse of complaint evidence – Crown concession – Proviso inapplicable – Appeal allowed – Crimes Act 1958 (Vic) s 36.

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APPEARANCES:	Counsel	Solicitors
Applicant	Ms H Spowart	Victoria Legal Aid
Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
COGHLAN AJA:

After a trial before a County Court jury, the applicant was convicted of one count of rape. He was sentenced to 4 years’ imprisonment with a non-parole period of 2 years 6 months.

The applicant sought leave to appeal against conviction and sentence. In its written case, the Crown conceded that there were a number of errors in the judge’s charge. We concluded that the concessions were properly made and, after hearing argument from the Crown, that the proviso was inapplicable. We made orders allowing the appeal, quashing the conviction and ordering a retrial. These are our reasons for making those orders.

Factual circumstances

The complainant, who was 15 at the time, met the applicant the night before the alleged rape. The applicant was in the company of three other males who had been fruit picking at Shepparton. The complainant had had a six week relationship with one of the four, Afram Kodi. The complainant was with a female friend.

The six met, purchased alcohol and returned to a flat in Heidelberg. Some of the alcohol was consumed and, at around two or three in the morning, the two girls, Kodi and another male went to sleep in one of the bedrooms. The applicant and the other male slept in the lounge room. In the morning, Kodi, who had been sleeping on the floor of the bedroom, next to the complainant under a blanket, got up to go to the toilet.

The Crown case was that, after Kodi went into the toilet, the applicant went into the bedroom while the complainant slept and removed her jeans and underpants. He then commenced to have intercourse with her, disguised by a sheet over his head. This woke the complainant, who immediately pushed the applicant away.

The complainant gave evidence that she went to bed fully clothed and awoke to find her clothes had been removed and that she was being raped by an assailant with a sheet covering his face. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duwah v The Queen

Details

AGLC: Duwah v The Queen [2011] VSCA 262
Case: [2011] VSCA 262
Decision Date: 5 September 2011

CaseChat Overview and Summary

The appellant, Duwah, appealed against his conviction for rape, arguing that the trial judge erred in failing to direct the jury on the need for the prosecution to prove the absence of consent. The case was heard in the Court of Appeal of the Supreme Court of Victoria. Duwah contended that the trial judge did not properly instruct the jury on the need for the prosecution to prove the absence of consent beyond reasonable doubt, and that the prosecution's case was presented on alternative and inconsistent bases, either that the complainant was asleep and unable to consent, or that she consented because of mistaken identity. Additionally, Duwah claimed that the trial judge allowed the complainant's evidence to be used for purposes other than those for which it was adduced, which breached the principles of natural justice.

The court considered whether the trial judge erred in not directing the jury on the need for the prosecution to prove the absence of consent, and whether the prosecution's case was put on alternative and inconsistent bases. The court also examined whether the trial judge misused the complainant's evidence and whether this breach of natural justice warranted the quashing of the conviction. The court found that the trial judge did not adequately instruct the jury on the requirement for the prosecution to prove the absence of consent, and that the prosecution's case was indeed presented on alternative and inconsistent bases. Furthermore, the court held that the trial judge misused the complainant's evidence by allowing it to be used for purposes other than those for which it was adduced. The court concluded that this breach of natural justice was significant and warranted the quashing of the conviction.

The appeal was allowed, and the conviction was quashed. The court held that the trial judge's failure to properly instruct the jury on the need for the prosecution to prove the absence of consent, the presentation of the prosecution's case on alternative and inconsistent bases, and the misuse of the complainant's evidence, all contributed to a significant miscarriage of justice. The court found that the proviso in section 36 of the Crimes Act 1958 (Vic) was inapplicable, as the errors were not minor or trivial. The orders of the Court of Appeal were that the conviction be quashed, and that Duwah be retried on the charge of rape.

Orders